PLUG and CITY OF COCKBURN
[2005] WASAT 71
•9 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960
CITATION: PLUG and CITY OF COCKBURN [2005] WASAT 71
MEMBER: MR M SPILLANE (MEMBER)
HEARD: 9 APRIL 2005
DELIVERED : 9 APRIL 2005
FILE NO/S: CC 28466 of 2004
BETWEEN: WILLEM PLUG
Applicant
AND
CITY OF COCKBURN
Respondent
Catchwords:
Building work - Local Government - Section 401 Notice
Legislation:
Local Government (Miscellaneous Provisions) Act 1960 s 40(1)(b)
State Administrative Tribunal Act 2004 s 60
Result:
Application for review upheld
Decision to issue notice set aside and notice revoked
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR M SPILLANE (MEMBER):
REASONS FOR DECISION
Application
An application for review was lodged by Willem Plug (“Applicant”) against the requirements of a notice issued by the City of Cockburn (“Respondent”), pursuant to s 401(1)(b) of the Local Government (Miscellaneous Provisions) Act 1960 (the Act), with respect to building work at Lot 167 No. 8 Redemptora Road Henderson.
Jurisdiction
Prior to 1 January 2005, applications for review under Pt XV of the Act were submitted to the Minister for Housing and Works. On the coming into force of the State Administrative Tribunal Act 2004, jurisdiction for handling those reviews passed to the State Administrative Tribunal ("SAT") and by order of the President of SAT dated 9 February 2005, all applications before the Minister but not determined as of 1 January 2005 were transferred to SAT. This application was one of those transferred.
Furthermore, having considered the matter I believe that pursuant to s 60 of the State Administrative Tribunal Act 2004, it is appropriate in this case that the matter be decided on the papers without the need for a hearing.
Facts
The respondent became aware of unauthorised building works (internal alterations to a commercial unit development, namely construction of a store room, mezzanine, stairs) during a routine inspection following which the respondent issued a notice dated 18 August 2004 to alter the building works.
Consideration
On 2 September 2004 the applicant submitted an Application for Review to the Minister of Housing and Works. In the submission, the applicant advised that he was willing to resolve all objections at the direction of the respondent.
On 22 September 2004 the respondent advised that the building work, the subject of the notice, contravened certain parts of the Building Code of Australia (BCA), but did not contravene the Council's Town Planning Scheme and local laws. The respondent requested that the applicant provide a structural engineers report and certification, together with fully detailed plans, of the building work.
On 16 November 2004 the applicant then submitted: 'as constructed' plans of the building work; a structural engineer's report certifying the structural soundness of the building works (with minor modifications to the staircase); and also a building surveyor's report that detailed the specific areas of non-compliance with the BCA. The applicant further advised that every effort was made to resolve all the items as required and invited an inspection to verify.
The respondent has since advised that an inspection confirmed that all the required remedial works have been carried out, and further advised that the application for review can be finalised.
Orders
On the basis that all of the respondent's concerns have been addressed. I order that:
The application for review is upheld; and
The decision to issue the notice dated 18 August 2004 is set aside and the notice is revoked.
I certify that this and the preceding three pages comprise the reasons for decision of the Tribunal.
______________________________
M Spillane
Member
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